From N.Y. Times v. U.S. Dep’t of Defense a/k/a Dep’t of War, decided yesterday by Judges Justin Walker and Bradley Garcia:
Last fall, the Pentagon announced a new policy governing Pentagon Facility Alternate Credentials (PFACs), the passes journalists have historically used to access the Pentagon. The new policy restricted this access and implemented rules that would allow the Pentagon to revoke credentials if the holder was determined to be a “security or safety risk to Department personnel or property.” A reporter could be deemed a “security or safety risk” “based on the unauthorized access, attempted unauthorized access, or unauthorized disclosure” of Department information.
The New York Times (NYT) and one of its journalists, Julian E. Barnes, filed suit to enjoin several provisions of the policy as unconstitutional under the First and Fifth Amendments, and as arbitrary and capricious under the APA. On cross-motions for summary judgment, the district court held that the rules governing when a PFAC may be denied for “security” reasons were unconstitutionally vague in violation of the Fifth Amendment because they “fail[ed] to provide fair notice of what routine, lawful journalistic practices” would trigger credential revocation.
Turning to the First Amendment, the court noted there was no dispute that “[t]he regular presence of PFAC holders at the Pentagon … enhanced the ability of journalists and news organizations … to keep Americans informed about the United States military.” Moreover, this arrangement had “pos[ed] no security or safety risk to Department property or personnel.” By contrast, the district court concluded that the record was “replete with undisputed evidence that the Policy” was specifically, and unreasonably, designed to deprive “disfavored” journalists of access to a nonpublic forum. Accordingly, the district court granted summary judgment to the plaintiffs on their constitutional claims, without addressing the APA claim.
The next business day, the government replaced the invalidated policy with a new one that revised provisions the district court had declared unconstitutional and announced new “physical security restrictions” for all PFAC holders. Those restrictions required that PFAC holders be escorted in all areas of the Pentagon “at all times” and limited their opportunities for entry to five approved purposes. At the same time, the Department announced that the previously available workspace in the “Correspondents’ Corridor” was closed and that a new workspace “will be established in an annex facility.”
The plaintiffs promptly moved to compel compliance with the summary judgment order, and the district court granted that motion. In addition to declaring the “adoption and enforcement” of “the escort requirements and access limitations” in violation of its previous order, the district court ordered the Department to reinstate “access” to the Pentagon “commensurate with the access provided to PFAC holders on March 20, 2026, following this Court’s Order vacating certain provisions of the prior PFAC Policy.” The Department responded by asking the district court for a stay pending appeal “to the extent” the district court’s order “vacate[d] and enjoin[ed] the Pentagon’s new physical access restrictions—the escort requirement and the physical access limitations.” The district court denied that motion but granted a fourteen-day administrative stay to allow the Department to seek relief here.
The Department sought an emergency stay pending appeal, limited solely to the order’s “entitl[ing] reporters to access the Pentagon unescorted.” “[The Department represented to the district court that ‘there is no requirement’ under the Interim Policy ‘to make advance requests for an escort’ and there would be ‘no concern that the Department could deny’ a PFAC holder an escort.”
The panel majority agreed:
On the questions of irreparable harm, the balance of equities, and the public interest, both parties identify weighty competing interests. The Pentagon Press Secretary has submitted a declaration explaining that prior to the 2025 PFAC Policy, journalists obtained “sensitive or classified” information “often monthly, and sometimes multiple times per month,” including information concerning “operational plans” and “intelligence assessments.” Unescorted access to the Pentagon was, according to the Department, “a significant contributing factor” to that pattern because it enabled reporters to “observe activity patterns” and identify potential sources of sensitive information. On that basis, the Department argues that unescorted access to the Pentagon will increase the risk that journalists obtain and disseminate sensitive information, jeopardizing national security. The Department has thus supported its claim that this aspect of its policy furthers important national security interests.
For their part, plaintiffs contend that the policy burdens newsgathering by restricting access in ways that impair their ability to “ask questions, confirm information,” and “receive timely updates”—opportunities that once lost, “will be lost forever.” That burden extends beyond the press itself, implicating the public’s interest in the free flow of information about government operations.
Because both sides have established substantial, competing interests, the balance of the equities and the public interest do not strongly favor either party. Our decision therefore turns on the merits.
The Department has shown that it is likely to succeed on the merits of the issue it presents. Under settled law, an agency may respond to an adverse ruling by adopting a revised policy, and it “need not seek modification of [an] injunction before it initiates” those efforts. That principle is implicated here. The escort requirement was not contemplated by the challenged 2025 policy. So the district court’s March 20 summary judgment opinion and order did not address that provision or a similar one.
Moreover, in part because the challenge to the Interim PFAC Policy was presented in a motion to compel compliance, the district court did not hold that the escort requirement independently violates the First or Fifth Amendment. On this record, the Department is likely to succeed in its argument that the escort requirement in particular is a new, generally applicable requirement that is not invalid for violating the district court’s summary judgment order or the constitutional principles underlying it.
And from Judge Michelle Childs’ dissent:
An injunction is not an invitation to circumvention. Once a court has spoken, the party bound by its order may not evade it through creative policymaking. On March 20, the district court ordered the Department of Defense to restore certain New York Times reporters’ Pentagon press credentials. The Department responded by restoring the credentials but stripping away much of what made them matter: regular, unescorted access to the Pentagon and the press workspace inside it.
The district court determined that such conduct was noncompliant with its injunction. My colleagues stay that ruling. Because the Department has not made a strong showing that the district court erred in interpreting its own injunction, I respectfully dissent….
I start with the district court’s authority to interpret its own injunction. As a rule, a district court has both “jurisdiction” and “inherent power to enforce its judgments.” That power reflects the judiciary’s institutional interest “in seeing that an unambiguous mandate is not blatantly disregarded by parties to a court proceeding.” With that in mind, we review a “district court’s interpretation and enforcement of its own orders” for abuse of discretion.
As Justice Scalia put it, “the construction given to the injunction by the issuing judge … is entitled to great weight.” Justice Breyer later described the same principle as “longstanding and well established.” On that understanding, “[t]he court granting the injunction is necessarily invested with large discretion in enforcing obedience to its mandate, and … courts of appellate powers are exceedingly averse to interfering with the exercise of such judgment and discretion.”
That discretion is not exercised by parsing an injunction as though it were a tax code…. [W]e must read an injunction in light of “what the decree was really designed to accomplish.” To identify that purpose, we consider “the relief sought by the moving party, the evidence produced at the hearing on the injunction, and the mischief that the injunction seeks to prevent.” …
Nor may a party exploit uncertainty as a license to disobey an injunction. If an injunction proves “too burdensome in operation,” the party has “a method of relief apart from an appeal.” It may petition the district court “for a modification, clarification or construction of the order.” After all, an appellate court is not the proper forum of first instance for resolving the particulars of an injunction….
These principles decide the point here. The Department was not free to make its own practical construction of the Merits Order, adopt a substitute policy that preserved the very “mischief that the injunction seeks to prevent[,]”and then insist that compliance was complete because the new policy was labeled “interim.” The district court was entitled—indeed required—to measure the Interim PFAC Policy against the Merits Order’s purpose, the record that produced it, and the access it was designed to protect. Viewed through that lens, the district court correctly decided that the Department had not complied….
In light of those principles, the district court’s Merits Order was clear that the Department had to “immediately reinstate the PFACs” of seven New York Times reporters. The Department did not do that. Instead, as the district court found, it “cut off all PFAC holders’ meaningful access to the Pentagon.” That finding matters because the point of the injunction, as the district court interpreted it, “was to restore The Times journalists’ access to the Pentagon, not merely to ensure that they have possession of a physical credential.” The Interim PFAC Policy thus runs headlong into what the injunction “was really designed to accomplish.”
The district court’s factual findings confirm the point. As even the majority notes, the Department announced—on the next business day after the injunction issued—that it was closing the Correspondents’ Corridor. The district court also found that the Department relegated PFAC holders “to work from a space outside the Pentagon building.” And it found more still: the Department announced that journalists could no longer enter the Pentagon “at all without a Department escort,” and that even escorted access would be limited to particular events. The Interim PFAC Policy says just that. PFAC holders may “continue to have access to the Pentagon for scheduled press briefings, press conferences, and interviews arranged through public affairs offices.” Even then, they must be escorted by authorized Department personnel “at all times.”.
That is not the access the Merits Order restored. In explaining why “the remedies available at law [were] inadequate,” the district court expressly relied on the proposition that “the only way to remedy the injury [from the loss of a press credential] is to return the hard pass and the access that comes with it.”
As for the facts it relied upon, the district court explained that the parties did not dispute that the “[t]he regular presence of PFAC holders at the Pentagon has enhanced the ability of journalists and news organizations to keep Americans informed about the U.S. military while posing no security or safety risk.” The district court also found that it was undisputed that from the Pentagon “reporters historically have been able to cover official press briefings, including those called on short notice (or without notice), and to ask questions of Pentagon officials at (and before and after) those briefings.” The district court found next that those reporters “also have engaged in additional semi-formal and informal conversations with senior Department officials and their aides, as well as public affairs staff.” “These in-person interactions,” as the district court determined and the parties did not dispute, “can be crucial to obtaining the context and detail needed to report accurately and effectively about defense policy and military operations.”
That makes sense. Reporters can hardly verify sources, gather information, or speak candidly with Department personnel with an escort looming over their shoulders. Given the district court’s factual findings and the law it applied, the purpose of the injunction was clear: The Department had to give PFAC holders unescorted access. That was the status quo through decades and wars—including after the “terrorist attack on September 11, 2001.” …
Given the foregoing reasons, the Department has not made a “strong showing that [it] is likely to succeed on the merits.” The Department bears the burden of justifying “such an extraordinary remedy,” and its stay application fails on the first stay factor. Since the Department has not shown that the Interim PFAC Policy likely complied with the Merits Order, I would deny the stay without reaching the remaining factors….
